TEMPORARY DISABILITY OVERPAYMENT: DEFENDANT NOT ENTITLED TO A CREDIT WHEN THERE IS NO WRONGDOING COMMITTED BY APPLICANT OR APPLICANT’S ATTORNEY
Roundtree v. Cherne Contr. Corp (2022) 2022 Cal.Wrk.Comp.P.D. LEXIS 281.
The sole issue in this case was Defendant’s assertion for credit of a temporary disability overpayment to the tune of $22,569.30. No surprises here, the Board, in a panel decision, found that Defendant was not entitled to take credit for the overpayment.
In an initial report dated 09/09/2019, QME Jared Myers, D.O. issued a report in which he deferred his opinions as he was not sent any medical reports. After receiving the report, on 10/11/2019 Applicant’s attorney sent QME Myers the requested information. On 10/22/2019, Defendant then sent the QME the requested medicals and Applicant’s deposition transcript.
After receiving the records, QME Myers issued a supplemental report dated 12/01/2019, finding in part that Applicant was permanent and stationary retroactive to the date of the initial examination on 09/09/2019. The parties agreed that QME Myers’ report rated out to 43% permanent disability, equaling $64,380.00.
During the period the parties were awaiting the supplemental report, Defendant continued to pay temporary disability benefits, uninterrupted, until 12/17/2019, and subsequently started permanent disability advances. All in all, Defendant overpaid $22,569.30 in temporary disability benefits and ended permanent disability advances after paying $8,700.00.
Applicant argued that Defendant was not entitled to a credit of the temporary disability overpayment, claiming that it was Defendant’s inadvertence that QME Myers did not have the necessary medical reports prior to the initial examination. Defendant, in response, argued that the trial judge could still allow the credit as the judge had discretion to award credit for benefits paid in good faith, even if there was negligence. Huston v. Workers’ Comp. Appeals Bd., (1979) 95 Cal.App.3d 856, 866. The WCJ agreed with Applicant.
According to the WCJ, Defendant’s arguments fell flat, and the failure to provide reports to the QME timely was “inexcusable.” The WCJ explained that Applicant had gone above and beyond by sending QME Myers the missing medicals two weeks before Defendant even noticed that the QME had not received these reports. The WCJ further explained that Defendant should have acted swiftly to remedy the situation but failed to do so. Finally, the WCJ noted that the QME examination had been scheduled months in advance, giving Defendant ample time to send the medical file to the QME, but did not do so. As such, it was improper to award Defendant credit for a temporary disability overpayment against permanent disability even in the WCJ’s discretion.
The Board, adopting the WCJ’s Findings and Order, affirmed this decision.
Moral of the Story: Don’t wait until the last minute to send cover letters and medicals to the QME or AME. This is something Mullen & Filippi will never do!
APPORTIONMENT: LABOR CODE SECTION 4663 – ASK THE QME HOW AND WHY APPORTIONMENT APPLIES!
Jimenez v. Pacific Cambria, Inc., Everest National Insurance Company (2022) 2022 Cal.Wrk. Comp. P.D. LEXIS 258.
Again, foiled by the applicant! Here, Defendant was not entitled to 50% apportionment pursuant to Labor Code Section 4663 because the QME did not explain how non-industrial factors contributed to Applicant’s disability.
Here, Applicant sustained a left knee injury when he fell off barrels at work. After conservative treatment failed, Applicant was referred for surgical intervention. The parties proceeded with Scott A. Graham as the QME who issued his finding in a report dated 05/06/2021.
Regarding apportionment, the QME found that 50% of Applicant’s knee impairment was apportioned to a pre-existing condition, said pre-existing condition being an arthroscopic partial medial meniscectomy done 30 years prior, and severe osteoarthritis. QME Graham went on to explain that while Applicant reported that he was pain-free after the meniscectomy and before the industrial injury, that 50% apportionment to non-industrial factors was necessary in light of Applicant’s severe osteoarthritis, as epidemiological studies indicated that individuals with osteoarthritis of the knee were symptomatic 50% of the time and asymptomatic 50% of the time.
The WCJ did not find QME Graham’s reasoning to constitute substantial medical evidence. The Board agreed.
The Board explained that Escobedo did allow a physician to apportion to pathology and asymptomatic prior conditions, but the physician must explain the why and how. QME Graham, here, failed in this regard. According to the Board, the QME should have “described with specificity, how factors other than the industrial injury contributed to the need for a total knee replacement and how those factors contributed to the poor result from the procedure.” In other words, QME Graham’s explanation could have applied to anyone and not necessarily the applicant.
Moral of the Story: Ask the QME to explain their apportionment opinions with the how and why and with as much specificity as possible!
By Tejal Naik, Associate Attorney, Oakland Office, December 2022 and January 2023, with commencing poem selected by Kenneth W. Scott, Associate Partner, Bakersfield Office.